Findings Of Fact Petitioner is a small business party within the meaning of Subsection 57.111(3)(d), Florida Statutes (1987). Petitioner was required to relocate its business in 1986 as the result of a public taking of the property where the business was situated. Petitioner sought relocation benefits from Respondent's relocation assistance program. The program is operated by Respondent in accordance with authority contained in Sections 339.09(4) and 421.55(3), Florida Statutes. Various requests by Petitioner for payment of relocation benefits in accordance with the Uniform Relocation Act were denied by Respondent. In DOAH Case No. 88-0778T, Petitioner sought a formal administrative hearing pursuant to Section 120.57, Florida Statutes concerning Respondent's denial of the requested reimbursements. At the final hearing in DOAH Case No. 88-0778T, evidence was presented regarding Respondent's denial of benefit payments of $1,324 for advertisement expense in a telephone directory; $1,370 for installation of an exhaust fan at the new facility; $2,405 for fees for consultative services from an attorney; $1,200 for the alleged loss of employee time spent in conferences with Respondent personnel regarding relocation; $1,500 for expense of a second search for a suitable relocation site; and $1,035 for consultation fees associated with design of a product display area in the new facility. With the exception of Respondent's denial of the claim for $1,035 for consultant fees, Respondent's denials were found to be appropriate in DOAH Case No. 88-0778T. Such a finding of appropriateness also equates to a finding of substantial justification for denial for purposes of this proceeding. A recommended order was issued in DOAH Case No. 88-0778T, finding denials of all requested reimbursements to be appropriate with the exception of Respondent's denial of the request for $1,035 for consultation fees associated with design of a product display area. Payment of this latter amount was recommended as constituting an authorized reimbursement under legal provisions governing the relocation program. On December 26, 1988, Respondent entered a final order awarding Petitioner $1,035 for this consultation fee expense. Other claims for reimbursement by Petitioner in the amount of $10,414.17 were paid by Respondent, prior to the final hearing in DOAH Case No. 88-0778T, in the course of proceedings in the Circuit Court for Broward County, Florida. That court adopted a settlement stipulation of the parties regarding those claims which expressly reserved attorney fees in regard to those issues for later determination by that court. Petitioner presented no evidence with regard to those claims at the final hearing in DOAH Case No. 88-0778T. At the final hearing in the present proceeding, Respondent offered testimony that confusion concerning payment of those claims resulted from the death of the attorney handling the case for Respondent. Respondent initially denied the claims in the absence of the deceased attorney's records in the mistaken belief that the matter had been resolved earlier in the circuit court condemnation proceeding. Upon learning such was not the case, payment of the claim and effectuation of settlement of the issue was made in the circuit court case and occurred shortly after Petitioner's request for hearing in DOAH Case No. 88- 0778T. The circumstances surrounding the initial denial of payment of this benefit by Respondent substantially justify Respondent's denial and constitute a sufficient basis to deny Petitioner's recovery of fees or costs related to this payment recovery in this administrative proceeding. The proof submitted at the final hearing in this cause establishes that Petitioner's counsel expended between 55 and 70 hours of time in his representation of Petitioner's attempts to recover all denied benefits in DOAH Case No. 88-0778T. Counsel's average hourly rate was $125. However, the fee arrangement between client and counsel was a "modified or combined contingency fee" permitting any recoverable attorney fees to serve as the primary source of payment of counsel's fees. Petitioner was not bound by the agreement to pay counsel's fees beyond amounts determined to be appropriate by the hearing officer in the administrative case or the judge in the circuit court matter. To that extent, attorney fees in this cause that have been incurred by Petitioner may be considered "contingent." Documentation submitted by Petitioner includes an affidavit from its president which simply recites the status of Petitioner as a small business party, but sets forth no specifics of a fee arrangement with counsel. The affidavit of Petitioner's counsel establishes a minimum number of hours (55) and dates of work performed by counsel, and states that his hourly rate is $125. Calculating the number of hours by the hourly rate, one reaches a total fee amount of $6,875. Counsel's affidavit does not address which of the various benefits sought to be recovered was the subject of any particular expenditure of time. Although the relocation benefits sought to be recovered were separable subjects, allocation of time expended with regard to a particular benefit recovery effort is not established by the evidence. Testimony of William Robert Leonard was also offered by Petitioner to support the reasonableness of a legal fee amount of $10,000 for Petitioner's counsel. While Mr. Leonard opined that he normally would not support a $10,000 attorney fee as reasonable for a $1,000 recovery, the circumstances of this case were different because "[y]ou are arguing with the state." Petitioner attempted to establish through further testimony of Leonard that the enormity of the resources of the government of the State of Florida justify such a fee because cost considerations prevent private litigants from engaging in costly and protracted proceedings in matters of limited recovery. Leonard did not address allocation of the requested attorney fee among the various benefits for which recovery was sought, choosing instead to premise his opinion regarding reasonableness of a $10,000 attorney fee upon "the amount of time counsel was required to respond to a state agency." Leonard's testimony is not credited with regard to reasonableness of a $10,000 fee for recovery of the $1,035 relocation benefit due to his professed lack of knowledge of certain administrative law procedures; the failure of his testimony to address the nature or difficulty of tasks performed by counsel for Petitioner; and his concurrence with the assertion that his opinion of such a fee was based in part upon a "gut reaction." No evidence was submitted to support the reasonableness of the cost amount of $250 requested as a witness fee for Mr. Leonard's participation in the proceeding. Petitioner seeks recovery of $448.50 in costs associated with the transcript of final hearing had in DOAH Case No. 88-0778T and a $480 expert witness fee in conjunction with testimony of E. Scott Golden, an attorney, at that final hearing. The testimony of Mr. Golden in that proceeding related to his provision of relocation site advice to Petitioner and drafting of legal documents for Petitioner. Petitioner did not prevail with regard to recovery of relocation benefits related to the expense of Mr. Golden's services.
The Issue The issue to be determined is whether Petitioner, Department of Environmental Protection (DEP), is entitled to attorney’s fees pursuant to section 57.105, Florida Statutes, from Respondents, Bernard Spinrad and Marien Spinrad (Spinrads), and their counsel, related to litigation between the parties in DOAH Case No. 13-2254.
Findings Of Fact The Recommended Order in DOAH Case No. 13-2254, including the Preliminary Statement, the Findings of Fact, and the Conclusions of Law contained therein, and the Department of Environmental Protection’s Consolidated Final Order in OGC Case No. 13-0858 are incorporated herein by reference as the facts underlying this Final Order.
Findings Of Fact Petitioner was represented by in this case by Michael Linsky, Esquire, beginning in April 1988. Two complaints of discrimination had been brought against the Department of Corrections by Petitioner. Linsky is an experienced trial lawyer having been admitted to the Florida Bar in 1970. However, he had no experience with discrimination cases prior to these proceedings. The Florida Commission on Human Relations found the Department had committed an unlawful employment practice when it assigned Petitioner to perimeter post duty and transferred him to Polk Correctional Institution in retaliation for having filed a discrimination complaint. Linsky originally took Petitioner's case on a contingency fee basis, but later it was decided between Linsky and Petitioner that the fee would be whatever was awarded by the Commission. Petitioner was only to be responsible for costs. Linsky submitted into evidence as Exhibit 1 a list of dates and hours expended on this case. However, this exhibit was prepared by Linsky's secretary some months after the events depicted and appear grossly exaggerated in some instances. Linsky claims a total of 159.35 hours expended. Linsky testified that his billing rate from April 1988 to December 1988 was $175 per hour, and thereafter it was raised to $190 per hour. Petitioner's expert witnesses contend the average billing rate in the Tampa area for this type of case ranges from $125 to $175 per hour. Respondent's expert witnesses contend the fees awarded run from $100 to $150 per hour. I find the appropriate fee in this case to be $135 per hour. Although Linsky claims to have spent 159.35 hour on this case, including the attorney's fees portion, 1 find that only 100 hours are reasonable. Costs of $423.60 is not disputed.
Recommendation It is recommended that the Department of Corrections be directed to pay Sefsick's attorney $13,500 attorney's fees and $423.60 costs in these proceedings. DONE AND ENTERED this 28th day of September, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1990. APPENDIX Petitioner's proposed findings are accepted, except: 3. This proposed finding is accepted as a recital of the testimony presented, but rejected insofar as inconsistent with H.O. #8. 5. Rejected insofar as inconsistent with H.O. #7. 6 and 7. Accepted as legal argument, but rejected as a finding of fact. Respondent's proposed findings are accepted. COPIES FURNISHED: Michael A. Linsky, Esquire 600 North Florida Avenue Suite 1610 Tampa, FL 33602 Lynne T. Winston, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 Louis A. Vargas General Counsel Department of Corrections 1313 Winewood Boulevard Tallahassee, FL 32399-2500 Richard L. Dugger Secretary Department of Corrections 1313 Winewood Boulevard Tallahassee, FL 32399-2500 =================================================================
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
The Issue Whether the permit sought by Petitioner should be issued.
Findings Of Fact Petitioner initially filed a permit application with Respondent on March 17, 1997. The required application fee did not accompany the application. The submittal, in accordance with Respondent’s office procedure, was date-stamped at that time but in the absence of the application fee and proper signatories, was not viewed as an application ready for review. The initial permit application had been hand-delivered by Petitioner’s employee, date-stamped and perused by Respondent’s employee, and returned to Petitioner’s employee upon observing the absence of the application fee. On August 29, 1997, Petitioner again submitted the application to Respondent’s offices. This time, the application was appropriately signed and accompanied by a check for the appropriate application fee. Following the August 29, 1997, submittal, Petitioner stopped payment on the check for application fees. However, the review process had begun on the application. By letter dated September 26, 1997, Respondent’s representative requested additional information of Petitioner. There was no response to the request. The permit application fee remained unpaid at the time of final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order DENYING Petitioner’s application for the requested permit. DONE AND ENTERED this 10th day of November, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1999. COPIES FURNISHED: O. C. Allen, Jr., Qualified Representative Environmental Waste Recyclers, Inc. Post Office Box 10572 Tallahassee, Florida 32302 Martha L. Nebelsiek, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection Doulgas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue to be resolved in this proceeding is the amount of attorney’s fees to be paid by Respondent, Agency for Persons with Disabilities (“APD” or the “Agency”), to the Petitioners, G.B., Z.L., through his guardian K.L., J.H., and M.R.
Conclusions This matter is related to the promulgation of proposed rules 65G-4.0210 through 65G-4.027 (the “Proposed Rules”) by the Agency in May 2013 in its effort to follow the mandate issued by the Florida Legislature concerning the iBudget statute, section 393.0662, Florida Statute (2010). Petitioners challenged the Proposed Rules in DOAH Case No. 13-1849RP. The Proposed Rules were upheld by the Administrative Law Judge, but Petitioners appealed the Final Order to the First District Court of Appeal (the “Court”). The Court’s decision was rendered July 21, 2014. G.B. v. Ag. for Pers. with Disab., 143 So. 3d 454 (Fla. 1st DCA 2014). The Fee Order was entered by the Court on the same date. The Fee Order had been entered upon the filing of a motion for appellate attorney’s fees filed with the Court by Appellants/Petitioners. The motion set forth three bases for an award of fees, to wit: Section 120.595(2), Florida Statutes, which provides: Challenges to Proposed Agency Rules Pursuant to Section 120.56(2).– If the appellate court or the administrative law judge declares a proposed rule or portion of a proposed rule invalid pursuant to s. 120.56(2), a judgment or order shall be rendered against the agency for reasonable costs and reasonable attorney’s fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust. An agency’s actions are “substantially justified” if there was a reasonable basis in law and fact at the time the actions were taken by the agency. If the agency prevails in the proceedings, the appellate court or administrative law judge shall award reasonable costs and reasonable attorney’s fees against a party if the appellate court or administrative law judge determines that a party participated in the proceedings for an improper purpose as defined by paragraph (1)(e). No award of attorney’s fees as provided by this subsection shall exceed $50,000. Section 120.595(5), Florida Statutes, which provides: Appeals.– When there is an appeal, the court in its discretion may award reasonable attorney’s fees and reasonable costs to the prevailing party if the court finds that the appeal was frivolous, meritless, or an abuse of the appellate process, or that the agency action which precipitated the appeal was a gross abuse of the agency’s discretion. Upon review of the agency action that precipitates an appeal, if the court finds that the agency improperly rejected or modified findings of fact in a recommended order, the court shall award reasonable attorney’s fees and reasonable costs to a prevailing appellant for the administrative proceeding and the appellate proceeding. Section 120.569(2)(e), Florida Statutes, which provides: All pleadings, motions, or other papers filed in the proceeding must be signed by the party, the party’s attorney, or the party’s qualified representative. The signature constitutes a certificate that the person has read the pleading, motion, or other paper and that, based upon reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion or other paper is signed in violation of these requirements, the presiding officer shall impose upon the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expense incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee. The Court did not specifically address which of Petitioners’ stated bases for award of attorney’s fees was being relied upon when granting Petitioners’ motion. Petitioners assert that it must therefore be presumed that the Court granted the request for fees on the basis of all three of Petitioners’ bases. There is no other support for that presumption, as the Fee Order is silent on the issue. It could equally be presumed that only one of the bases was relied upon by the Court. Thus, a determination of the appropriate basis for fees is critical in the determination of the amount of fees to be awarded, as will be set forth more particularly below. The Fee Order establishes only that attorney’s fees are awarded, with leave for the parties to determine the appropriate amount or, failing to do so, obtain direction from an Administrative Law Judge on the matter. There is no issue as to whether Petitioners are entitled to fees or costs, only the amount to be awarded. DOAH has jurisdiction over the parties and the subject matter of this proceeding under the August 6, 2014, Mandate of the First DCA, and under section 120.595(2). Although it is herein determined that section 120.595(2) is the appropriate provision to be considered for fees in this case, each of the other statutory sections argued in Petitioners’ motion for fees will be addressed nonetheless. Section 120.595(5) If section 120.595(5) is to be the basis for fees, it must be shown that Respondent is guilty of a “gross abuse” of its discretion. “Gross abuse” is not defined in statute. As stated by the Court in Allstate Floridian Insurance Co. v. Ronco Inventions, LLC, 890 So. 2d 300, 302 (Fla. 2d DCA 2004), “The troublesome nature of our review here is the admittedly high ‘gross abuse of discretion’ standard. . . . However, we have no definition of what a ‘gross’ abuse of discretion includes or how it differs from an abuse of discretion. We can only assume that it is more egregious than a typical abuse of discretion.” The Court cited Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980), in which the Supreme Court iterated that if reasonable men could differ on an issue, there was no abuse of discretion to act one way or the other. Other courts, looking at the issue of “abuse of discretion” in administrative matters, have struggled with a definitive description or definition. In Citizens to Preserve Overton Park, Inc., et al. v. Volpe, Secretary of Transportation, 401 U.S. 402; 91 S. Ct. 814; 23 L. Ed. 2d 136 (1971), the Court was trying to determine whether the Transportation Secretary had acted within his discretion. The Court decided it “must consider whether the decision was based on clear error or judgment. [citations omitted] Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The Court is not empowered to substitute its judgment for that of the agency.” Id., at 416. And, as found by another Court, whether an act is arbitrary, capricious, or an abuse of discretion is “far from being entirely discrete as a matter of the ordinary meaning of language. . . . Rather than denoting a fixed template to be imposed mechanically on every case within their ambit, these words summon forth what may best be described as an attitude of mind in the reviewing court one that is ‘searching and careful’ . . . yet, in the last analysis, diffident and deferential.” Natural Res. Def. Council, Inc., et al. v. Sec. and Exch. Comm'n, et al., 606 F.2d 1031, 1034, U.S. App. DC (1979). In Ft. Myers Real Estate Holdings, LLC, v. Department of Business and Professional Regulation, 53 So. 3d 1158 (Fla. 1st DCA 2011), the Court awarded fees under section 120.595(5). In that case, the agency denied party status to the applicant for services. The Court said, “The position taken by the Division in the dismissal order, and maintained in this appeal, is so contrary to the fundamental principles of administrative law that, by separate order, we have granted Appellant’s motion for attorney’s fees under section 120.595(5), Florida Statutes.” The Court did not, however, define gross abuse of discretion any more specifically than that. Likewise, in Salam v. Board of Professional Engineers, 946 So. 2d 48 (Fla. 1st DCA 2006), the Court found that an agency’s intentional delay on acting upon a petition for formal administrative hearing warranted fees under the statute. The Salam Court did not further define gross abuse of discretion; it merely found that such abuse existed under the circumstances of the case. Gross abuse of discretion must, by definition, be more difficult to ascertain than simple abuse of discretion. Gross abuse implies that the Agency first believed its intended action was improper, yet engaged in the action despite that knowledge. That is, that the Agency acted intentionally to do something it knew to be wrong. Proof of such intent would be extremely difficult.1/ One need only look at the plain language of the Court’s opinion in the rule challenge appeal at issue here to see that there was no gross abuse of discretion. The Court ultimately held that although the Agency’s rules “directly conflict with and contravene the Legislature’s clear language” concerning development of an algorithm to assist with the distribution of funds to needy Floridians, “[W]e recognize the difficulty in adhering to the Legislature’s command to create an algorithm solely capable of determining each client’s level of need. Further, we accept that [Respondent] is attempting to find a reasonable way to administer funds to the tens-of-thousands of people in need that it assists.” G.B. et al., supra, 143 So. 3d 454, 458. Nothing in that language suggests that the Agency knew its proposed rule was improper or that it was doing anything intentionally wrong. Rather, the language of the Court’s decision indicates that Respondent was certainly attempting to exercise its discretion properly in the adoption of the Proposed Rules. Despite the Agency’s attempts to justify the rules both at final hearing and on appeal, the Court found that the Proposed Rules did not comport with the specific authorizing statute. That failure did not, ipso facto, establish that there was a gross abuse of the Agency’s discretion. Besides, upon hearing all the testimony and reviewing the evidence, the undersigned initially upheld the Proposed Rule; that, in and of itself, is some indication that the Agency’s efforts were legitimate. Thus, in the present matter, there is no rational basis for finding that gross abuse of discretion was involved in the Court’s award of attorney’s fees. Section 120.569(2)(e) As for section 120.569(2)(e), there is no evidence to support Petitioners’ contention that the proposed rule addressed in the rule challenge proceeding (DOAH Case No. 13-1849RP) was interposed for any improper purpose. The appellate court said, “[W]e accept that APD is attempting to find a reasonable way to administer funds to the tens-of-thousands of people in need that it assists.” Id. Clearly, the Agency did not act for an improper purpose; its best efforts to follow the Legislative mandate for an iBudget simply fell short. The Proposed Rules contravened certain specific requirements of the governing statute. In order to find a way to meet its mandate, the Agency made a Herculean effort, yet failed. Although Petitioners argue that an “improper purpose” was implied by the Court in the Fee Order, there is no substantive support for that position. Not only was APD’s attempt to find a “reasonable way” to discharge its responsibility found wanting by the Court, experts in the field who testified at the underlying hearing disagreed as well. There was no dispute about the intended purpose of the Proposed Rules, only as to how that intent was to be effectuated. There was never any dispute as to the Proposed Rules’ intended purpose; they were meant to find a way to serve the tens-of-thousands of people in need. There is nothing in any of the Agency’s actions in this case that would be even arguably described as “interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation.” This attorney’s fee section does not apply to the facts of this case. Section 120.595(2) Finally, in section 120.595(2), the Legislature has declared that if an appellate court or administrative law judge declares all or part of a proposed rule invalid, an order will be entered awarding reasonable attorney’s fees and costs (unless the agency demonstrated that its actions were substantially justified). The Court ultimately concluded that the proposed rules “directly conflict with and contravene the Legislature’s clear language.” That being the case, the Court seems to be finding that the Agency’s actions--promulgating the Proposed Rules--was not substantially justified, even if the Court did recognize the difficulty faced by APD in its efforts to comply with the statutes at issue. By process of elimination, section 120.595(2) is the basis for the Court’s award of attorney’s fees in the present case. That being so, the award is capped at $50,000. The Agency has conceded that Petitioners are entitled to at least $50,000 in fees, as well as costs in the amount of $41,609.65. There remains the issue of whether each of the four Petitioners is entitled to an award of the maximum fee. In their (singular) Petition for Administrative Determination of the Invalidity of Proposed Rules, the parties sought the following relief: That a Final Order be entered finding the Proposed Rules to be an invalid exercise of delegated legislative authority; and That Petitioners be awarded their reasonable attorney’s fees; and Such other relief as the Administrative Law Judge deems appropriate. That is, the relief sought by each of the Petitioners was the same: invalidation of the proposed rules. It cannot be argued that each Petitioner in his or her own right was seeking individual redress or damages. Collectively, they wanted the proposed rules invalidated so that they could return to the status quo concerning their benefits from the State. In fact, only one of the four Petitioners presented testimony at the underlying administrative hearing as to the impact of the Proposed Rules. There was no issue as to each Petitioner’s standing in the underlying administrative hearing. As stated by the Agency in its Proposed Final Order in that case: “Petitioners are each recipients of Medicaid Services under the DD waiver program and have been or will be transitioned to the iBudget system. Stip., pp. 23-24. Thus, Petitioners have standing to challenge the substance of the Proposed Rules.” Petitioners contend that each of the 25,000-plus recipients of benefits from the Agency could have filed petitions challenging the Proposed Rule. That is true. But in the rule challenge proceeding there were four petitioners (ostensibly representing those other 25,000), each seeking the same relief, i.e., invalidation of the proposed rules. And only one of those, K.L., testified at final hearing in the underlying rule challenge proceeding. Thus, there is no justification for an award of fees to each of the Petitioners under section 120.595(2). In light of the findings and conclusions above, and based upon the Order as stated below, the issue of contingency multipliers is not relevant to the discussion of fees herein. As a general rule in Florida, fees and costs incurred in litigating entitlement to attorney’s fees are collectible although time spent litigating the amount of the award is not compensable. See, e.g., State Farm Fire & Cas. Co. v. Parma, 629 So. 2d 830, 833 (1993). § 92.931, Fla. Stat.; Stokus v. Phillips, 651 So. 2d 1244 (Fla. 2d DCA 1995). Inasmuch as the Agency does not dispute entitlement to attorney’s fees, no fees for the fee case are warranted. The amount of fees sought in this administrative rule challenge by the Petitioners is, as set forth in their Proposed Final Order: $255,614.39 for the DOAH rule challenge proceeding; $154,662.35 for the appeal but also applied a contingent multiplier for a total of $309,324.70; $62,850.00 for the fee case but also applied a contingent multiplier for a total of $94,275.00; and $41,609.65 in taxable costs, for a total of approximately $660,000.00. While the amount of fees and costs allowed under the appropriate statute is well less than what Petitioners sought, it has been deemed legally sufficient by statute.
Findings Of Fact Rebecca Lillien is a 32-year-old developmentally disabled person who was involuntarily committed to the Department of Health and Rehabilitative Services' (hereinafter "HRS") Residential Care Program. HRS has placed Rebecca Lillien at the Lyall Group Home in Opa Locka, Florida, under the Community Residential Training program. Rebecca Lillien also attends a day training program at United Cerebral Palsy in Miami, Florida. Under contract, HRS pays Lyall Group Home $411 per month to provide residential care (room, meals, and supervision) for Rebecca Lillien. Rebecca Lillien's total income consists of Social Security survivor's benefits and Supplemental Security Income (hereinafter "SSI") disability benefits totaling $345 per month. The SSI Program is a federal welfare program administered by the Social Security Administration. The SSI Program provides up to $345 per month in cash benefits to elderly, blind, or disabled persons who also meet financial eligibility requirements (income less than $345 per month and countable resources of less than $1,600). Audrey Lillien is the mother of Rebecca Lillien and is the representative payee of Rebecca's Social Security and SSI benefit checks. Audrey Lillien's total income consists of Social Security and SSI benefits totaling $345 per month. Rebecca Lillien is an adult client. She is unmarried and is considered to be a family of one since she is over the age of 18, has not been declared legally incompetent, does not have a guardian, and has no dependents. The Social Security and SSI benefits she receives are legally hers. On February 17, 1983, HRS granted a total waiver of fees for the residential care of Rebecca Lillien at the Lyall Group Home, retroactive to July 23, 1982. At the time the fee waiver was granted in 1983, Rebecca Lillien's only income was from Social Security and SSI benefits., From February 1983 until March 31, 1985, HRS did not bill Audrey Lillien for Rebecca's care. During that same time period, HRS did not require the annual submission of a completed Maintenance Fee Information Form, HRS Form 280, in order to determine the continued eligibility of Rebecca Lillien, for a total fee waiver or a reduced fee. In 1983, the Fee Collection Review Committee, in determining whether to grant a fee waiver or reduction, improperly considered personal expenses paid by parents for adult children. Due to serious fiscal impact and budget deficits in HRS District Eleven (the district within which Rebecca Lillien resides), the Pee Collection Unit was reorganized and received training on fee collections. It was discovered at that time that the Fee Collection Unit and the Fee Collection Review Committee were not following proper procedures for assessing a fee and were misinterpreting state law. Specifically, they were not requiring that a client's income based on benefit payments is to be applied first to the cost of care and maintenance of the client. In 1985 fee collections began to be implemented by District Eleven in a uniform manner in strict accordance with the regulations and policies of HRS. The provision that required as priority that room, board, and maintenance be offset was strictly enforced. This change in interpretation and implementation of the fee collection regulations and policies is not in violation of or contrary to any existing statute, regulation, or rule; rather, it is in compliance with the existing statutes, regulations, and rules. In March 1985, HRS assessed a monthly fee of $295 for the care and maintenance of Rebecca Lillien. The fee was calculated on the total income of Rebecca Lillien minus $50 personal allowance. The fee was assessed against Audrey Lillien in her capacity as representative payee. The personal allowance is an amount of $50 given to residential care clients for personal needs such as clothing, recreation, hygiene products, and miscellaneous needs. In March 1985 the personal allowance was $40 per month, but it was increased to $50 per month as of July, 1985. If a client's personal needs exceed $50 per month, HRS is authorized to allow $28 more per month as an incidental allowance, payable to the group home. In March, 1985, Audrey Lillien was notified by HRS that the monthly fee for Rebecca's maintenance would be $295. HRS further notified Audrey Lillien that Rebecca was responsible for that fee retroactively and interest would be assessed on the retroactive balance. At the final hearing in this cause, HRS properly waived any claim for retroactive payment and therefore any claim for interest. HRS is required to develop an habilitation plan each year for Rebecca Lillien. This annual habilitation plan sets forth the treatment and therapeutic objectives for the coming year based upon the needs of Rebecca Lillien. On April 3, 1985, an habilitation plan was developed for her. The HRS team that evaluated Rebecca Lillien determined that a group home was the most appropriate placement for her. The evaluation team also determined that Rebecca Lillien should continue regular visitation with her mother as long as it remains beneficial to her and that she should continue to participate in activities she enjoys, such as musical programs, movies, and going to restaurants. The evaluation team further determined that Rebecca Lillien needs training in daily living skills and in self-care skills. The daily-living goal is for Rebecca to be able to verbalize and demonstrate appropriate behavior in stores, and the goals for self-care skills include grooming and the ability to independently choose pieces of clothing that coordinate. There is no mention in the habilitation plan that any items must be purchased, however. Further, the daily living skills and self- care skills are part of the training Rebecca receives at the United Cerebral Palsy Program, the cost of which is paid by HRS. It is beneficial to Rebecca for her mother to reinforce the training that Rebecca receives in the day training program so as to support her continued progress in the development of those skills. The habilitation plan also calls for routine medical and dental care and vitamin C supplements. HRS and Medicaid pay for all medical and dental expenses of the client, including prescriptions. Rebecca Lillien is a healthy person who has good teeth and, as such, does not have extraordinary or unusual medical or dental expenses. There is no evidence that Rebecca Lillien has required any dental or medical care at all over the last several years. Petitioners did introduce one bill for a "consultation" but presented no evidence as to the reason for that consultation and, therefore, no evidence that that charge should have been incurred. Although Audrey Lillien does purchase vitamin C for Rebecca Lillien, she does not purchase any prescription drugs for her. The habilitation plan developed on April 30, 1986, contains the same goals and recommendations as the 1985 plan. HRS does not pay for Rebecca Lillien's clothes, personal care items, recreation needs (other than those provided by the group home), spending money, transportation to visit her mother, food, and shelter expenses not incurred at the group home, or medical and dental costs not covered by medicare or medicaid. Audrey Lillien uses Rebecca Lillien's income to cover her own household expenses and transportation, as well as to provide Rebecca with the items enumerated in the preceding Finding of Fact. Rebecca Lillien stays with her mother Audrey Lillien approximately every other weekend and on holidays. Audrey Lillien purchases two different sets of clothing for Rebecca. One set is for use at the group home and the other is for use at Audrey Lillien's home. Based upon Petitioners' income and the totality of circumstances, duplication of wardrobes is excessive and unwarranted. Rebecca Lillien has a hobby of making beaded jewelry. In a four-month period Audrey Lillien spent almost $300 on beads for Rebecca, including a total of $226 on a single day--March 6, 1986. 8ased upon Petitioners' income and the totality of circumstances, expenditures of this amount are excessive. Audrey Lillien spends approximately $100 per month for groceries for Rebecca for the days that Rebecca is visiting her. In addition, she and Rebecca also dine at restaurants while Rebecca is visiting. Such a food expense is excessive. Audrey Lillien claims-transportation expenses as expenses incurred on Rebecca's behalf. Audrey Lillien's testimony as to the expense of maintaining her personal automobile is conflicting, and her testimony that 98% of her automobile expenses are attributable to Rebecca's transportation is simply not credible. In view of Rebecca's regular visits with Audrey Lillien, however, allowance should be made for some reasonable expense of transporting Rebecca between the Lyall Group Home and her mother's home, with that expense being paid out of an incidental allowance. Audrey Lillien has monthly household expenses of approximately $52 (mortgage on her condominium), $65 (condominium maintenance fee), and $100 (utilities). Her mortgage payment and maintenance fee are fixed and have no relationship to whether Rebecca is visiting. Although her utility bill may vary somewhat depending upon the frequency and duration of Rebecca's visits, no evidence was introduced to show what portion of Audrey Lillien's utilities bill might be attributable to Rebecca. Audrey Lillien gives Rebecca Lillien $30 a month for "whatever she wants. n This amount is less than the standard personal allowance of $50 given by HRS to each of its residential clients and is, indeed, in addition to the $50 personal allowance paid by HRS. Audrey Lillien pays for Rebecca Lillien's haircuts. These cost $8 every four to six weeks. She also pays for some special shampoo and skin cream which Rebecca needs. The evidence is unclear as to whether the shampoo and skin cream are medically required. If they are, it may be that these items should be billed to medicaid or to HRS as covered prescriptions. Upon receiving notice in 1985 of the assessed fee of $295 per month ($345-$50=$295), Audrey Lillien requested a review of that fee for purposes of being granted a reduction or a waiver of the fee. The HRS Fee Collection Unit, which determines what fee is to be charged, does not have authority to assess a lower fee than the fee calculated by deducting the personal allowance from the total monthly income. The HRS Fee Collection Review Committee may review an assessed fee and, based upon allowable expenses and other criteria, may grant a reduction or waiver of that fee. For example, the fee may be reduced or waived if the client can show severe, unusual and unavoidable expenses or obligations that warrant special consideration. The personal need allowance of $50 per month is not sufficient to meet the personal needs of Rebecca Lillien in view of the fact that Rebecca spends a fair amount of her time residing with Audrey Lillien rather than at the Lyall Group Home where HRS pays for her support. Fifty dollars is the amount of personal allowance paid by HRS, apparently regardless of whether it is needed. However, Rebecca has unusual needs in that, as opposed to other clients, she incurs regular transportation costs between the Lyall Group Home and her mother's home, food must be purchased for her while she is at her mother's home, and her mother must pay increased utilities while she is there. HRS will pay an additional $28 a month (in addition to the $50 personal allowance) for unusual expenses. Clearly, Rebecca's food, transportation, and utility costs while at her mother's logically exceed $28 per month and Rebecca is, therefore, entitled to the extra $28 payment from HRS. Petitioners are not entitled to a reduction in the assessed fee, however, since they have failed to prove the reasonable costs of Rebecca Lillien's unusual expenses of transportation, food, and utilities attendant to her visits with her mother.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Rebecca Lillien's request for a waiver of fee; assessing a fee of $295 per month, effective upon entry of a Final Order in this cause; and granting to Rebecca Lillien the sum of $28 per month as an incidental allowance in addition to the $50 per month standard personal allowance to assist in the unusual expenses related to her visits with her mother, effective upon entry of a Final Order in this cause. DONE and RECOMMENDED this 13th day of October, 1986, LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1986. COPIES FURNISHED: William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Rena R. Magnolnick, Esquire 2138 Biscayne Boulevard Suite 206 Miami, Florida 33137 Carmen Dominguez, Esquire Department of Health and Rehabilitative Services 2200 N.W. 7th Avenue Miami, Florida 33127 Leo PloLkin, Esquire 2085 U.S. 19 North Suite 314 Jenniffer Complex Clearwater, Florida 3357
Findings Of Fact In July 1976 Berger was working as a salesman for Property Resales Services when he and Tritsch decided to set up a similar advance fee listing operation. Berger was knowledgeable of the operation and Tritsch held a broker's license. Both had been engaged for several years in land sales in Florida and at one time both worked for the same land developer selling land to mostly out of state investors. Each put up $1,000 to get the corporation formed and in operation. Stock was equally split between Berger's son Albert and Tritsch with two shares unissued. Shortly after the business became operational Berger and Tritsch repaid themselves $750 of their investment/loan. Berger was to supervise the obtaining of listings and Tritsch was to set up the resale operation. Shortly before the beginning of operations Berger suffered a heart attack and was hospitalized For some two and one half weeks. Following his release from the hospital he was able to spend only limited time in the office. However, script for the telephone salesmen had been prepared as well as listing contracts and brochure to be sent to those customers indicating a desire to sell their land. The business opened as scheduled in a rented office with WATS lines installed. Similar to other advance fee operations the salesmen worked from about 6 P.M. until 10 P.M. making phone calls to out of state owners of Florida land. Most of the owners contacted were those who had earlier bought land in the developments of Rotunda, Royal Highlands, and Port Charlotte with which Tritsch and Berger were familiar. Lists of owners were purchased from a company in Miami providing such information and copies of the Charlotte County tax records were obtained. NPS joined the National Multiple Listing Service (NMLS) and the listings obtained were to be published in that publication. They also indicated in their sales pitch and on the listing contract that advertising would be placed in local newspapers. Salesmen were paid $125 for each listing received with the $350 advance listing fee obtained from the property owner except Egan who was paid $175 for each listing. Shortly after Berger became well enough to devote time to the affairs of NPS, Tritsch broke a shoulder in a motorcycle accident and was limited in his movements by a cast for some six weeks. This was followed by an operation on his nose also injured in the accident. Berger did little, if any, telephone solicitation. His function appeared to be that of supervisor and consultant. His son, Albert Berger, was given the job of secretary, bookkeeper and keeper of the records which the son, a fifty percent shareholder in the corporation, had no idea what happened to following his departure in December, 1975. Exhibit 6 shows checks were made payable to Annette Berger, presumably a daughter, as wages. Berger and Tritsch were paid $300 to $500 per week (net) for their services depending upon availability of funds, Albert Berger received $250 per week (net) and Annette Berger received $100 to $225 per week (net). Net wages are normally the salary left after the deduction for withholding and FICA taxes. Since no check stubs showed payment to the Internal Revenue Service the withheld portion of the salaries apparently was not remitted. Additionally Berger and Tritsch were reimbursed for travel expenses, but no testimony was adduced that Berger did any traveling on the business of the company. Nevertheless Berger was paid travel expenses and one check was made payable to an airline for nearly $300. Respondents Egan and Resnik as well as several other salesmen, not named as Respondents here, manned the telephones during the operating hours of 6:00 to 10:00 P.M. They generally followed the script given to them and no evidence was presented that any known false representation was made by either Egan or Resnik. Neither Egan nor Resnik attempted to sell property. However, Egan testified that if a customer was happy with his land and didn't want to sell, he would ask if the customer would like to buy more. No evidence was presented that either salesmen advised customers that contractors and other brokers were being transported to the property or that they suggested the customer could obtain an inflated price for his property. No sales of the listings so received was ever made by NPS. If the customer indicated a willingness or desire to sell his property when first called he was advised that literature would be mailed to him to more fully explain the services offered by NPS. The salesman then turned the name in to the office and a blank contract (Exhibit 3) and brochure (Exhibit 4) were mailed to the customer. After the customer received the material the salesman would again call and go over the provisions of the contract with the customer and attempt to induce the customer to sign the contract and forward it with his $350 listing fee for services NPS were to perform in selling the property so listed. The customers were told that the advance fee was used to advertise the property and to cover office expenses, however the fee would be deducted from the commission when the property was sold, and, in effect, refunded to the property owner. Both Resnik and Egan were led to believe that a sales office was being set up on the west coast, near the property for which listings were being solicited, however, no such office was ever opened. No advertising of any property was ever placed in newspapers or in any other media than the National Multiple Listing Services. As a matter of fact, no evidence was presented that any property for which NPS was paid an advance listing fee was ever advertised for sale in NMLS. Exhibit 6 indicates that NPS paid a total of $62.50 to NMLS before going out of business near the end of 1975. During the four to five months NPS remained in operation in excess of $52,000 was received from customers as advance listing fees and no sales of any of these listings was made. Respondents Tritsch and Berger both blamed their respective accident and illness for their failure to consummate sales of the properties for which listing fees were obtained.
